Confidentiality, Conflicts and the Family Will Instruction
Solicitor F is instructed by Mr. G, aged 79, to draft a new will leaving his entire estate (£1.2 million) to his daughter, P, cutting out his son, Q, with whom he has had a long estrangement. P accompanies her father to the meeting and does most of the talking, describing Q as 'greedy' and saying her father 'wants to protect the family money'. Mr. G is quiet and appears to defer to P. F has previously acted for Q in an unrelated conveyancing matter. P asks F to keep the instruction confidential from Q and to 'get it done quickly before Dad changes his mind'. F is also asked to act as executor.
1. Identify the professional and ethical issues for F and advise on the steps F should take before accepting the instruction.
Read the worked answer
Several issues arise:
Capacity and undue influence. F must satisfy himself that Mr. G has testamentary capacity (Banks v Goodfellow) and is acting freely. P's dominance, her doing the talking, and the request to 'get it done quickly' are red flags. F should see Mr. G alone, take a detailed attendance note, and consider a medical capacity assessment. F should not act on instructions given by P.
Conflict of interest. F has previously acted for Q. Acting on a will that disinherits Q may create a conflict or a duty to Q (a former client) - F must consider whether confidential information from the earlier retainer is relevant. If there is a real risk, F should decline or obtain informed consent, and may need to cease acting for Q in any related matter.
Confidentiality. F owes confidentiality to Mr. G, not to P. P's request to keep the instruction secret from Q is consistent with the testator's confidentiality, but F must ensure instructions come from Mr. G. F should not discuss the will with Q or P without Mr. G's authority.
Acting as executor. F may act as executor if the client so wishes, but should explain the role, fees, and any conflict, and obtain informed consent. F should not draft a will that appoints himself without clear client instruction.
Steps: see Mr. G alone; document capacity and free will; confirm instructions directly; advise on the risks of a 1975 Act claim by Q; consider declining if P's influence cannot be excluded; record all advice.
2. Q later contacts F asking what his father's will says. Explain F's obligations and the limits of confidentiality after death.
Read the worked answer
During Mr. G's lifetime: F owes strict confidentiality to Mr. G. Q has no right to know. F should decline to discuss the will, explain that he cannot confirm or deny instructions, and avoid any disclosure that could reveal the contents. F should not be drawn into discussing the earlier conveyancing matter either.
After death: the duty of confidentiality survives death, but it is not absolute. The personal representatives and, in practice, persons with a financial interest may have a right to see the will once it is admitted to probate (it becomes a public document). F, as executor, may need to communicate with beneficiaries and with Q as a potential claimant. However, F should not disclose the testator's instructions, drafting notes, or reasons for exclusion - those remain confidential and are protected by legal professional privilege, which belongs to the estate/testator.
Practical guidance: F should (i) tell Q he cannot discuss the matter; (ii) direct Q to the probate registry once a grant issues; (iii) if Q threatens a 1975 Act claim, F should consider whether he can continue as executor given his earlier dealings with Q, and may need to step aside or seek directions. F must not use confidential information from the Q conveyancing matter against Q.